Charles E. Barker Versus Anco Insulations, Inc. ( 2023 )

CHARLES E. BARKER NO. 22-CA-417
VERSUS FIFTH CIRCUIT
ANCO INSULATIONS, INC., ET AL COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 40,665, DIVISION "B"
HONORABLE CODY M. MARTIN, JUDGE PRESIDING
March 29, 2023
JOHN J. MOLAISON, JR.
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and John J. Molaison, Jr.
AFFIRMED
JJM
FHW
JGG
COUNSEL FOR PLAINTIFF/APPELLANT,
JEAN MARIE BARKER, STEVE A. BARKER, CHARLES E. BARKER JR.,
AND LESLIE A. ROBERTSON, INDIVIDUALLY AND ON BEHALF OF
DECEDENT, CHARLES E. BARKER
David R. Cannella
Christopher C. Colley
Kristopher L. Thompson
COUNSEL FOR DEFENDANT/APPELLEE,
BITCO NATIONAL INSURANCE COMPANY, THE TRAVELERS
INDEMNITY COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY,
AS THE ALLEGED INSURERS OF B&B ENGINEERING AND SUPPLY
COMPANY OF LOUISIANA, INC. AND B&B ENGINEERING AND SUPPLY
COMPANY, INC., AND ITS ALLEGED EXECUTIVE OFFICERS
Kaye N. Courington
Dawn D. Marullo
Jeffrey M. Burg
Troy N. Bell
MOLAISON, J.
In this case pertaining to asbestos exposure, the plaintiffs/appellants appeal
the granting of a summary judgment by the district court that dismissed their cause
of action brought against the executive officers for one of the companies where the
decedent worker was employed. For the reasons that follow, we affirm.
PROCEDURAL HISTORY
Mr. Charles Barker, a former Asbestos Workers Union insulator, was
diagnosed with malignant mesothelioma prior to his death. On December 29, 2021,
plaintiffs, Mr. Barker’s surviving heirs, filed a petition for damages at the Twenty-
Third Judicial District Court in St. James Parish, which alleged that Mr. Barker’s
mesothelioma was caused by asbestos exposure through his work for different
employers over the course of his career. On July 20, 2022, one of Mr. Barker’s
prior employers, B & B Engineering (“B & B”),1 filed a motion for summary
judgment. Relevant to the instant appeal, B & B’s former executive officers2
argued in the motion that none of the named officers owed a personal designated
duty to Mr. Barker to provide him with a safe workplace and, therefore, they were
not liable for any damages that resulted from his work with B & B. The trial court
granted summary judgment in favor of B & B’s former executives after a hearing
on August 17, 2022, and those parties were dismissed with prejudice. This timely
devolutive appeal followed.
1
For the purposes of brevity, “B & B Engineering” will be used to refer to all parties who had joined in the
motion for summary judgment: Bituminous Fire & Marine Insurance Company n/k/a BITCO National Insurance
Company, The Travelers Indemnity Company, and Liberty Mutual Insurance Company as the alleged insurers of
B&B Engineering and Supply Company of Louisiana, Inc. and B&B Engineering and Supply Company, Inc., and its
alleged executive officers.
2
The four former B & B executives, to whom the summary judgment applies, are: William Devillier, a job
and field superintendent; Armond Hullinghorst, a vice president and president of B & B; as well as foremen Ben
Kelly and Herman Warthen.
22-CA-417 1
ASSIGNMENT OF ERROR
In their sole assignment of error, appellants contend that the district court
erred in granting the executive officers’ summary judgment when genuine issues of
material fact exist.
LAW AND ANALYSIS
Appellate courts review a judgment granting or denying a motion for
summary judgment de novo. Thus, appellate courts ask the same questions the trial
court does in determining whether summary judgment is appropriate: whether
there is any genuine issue as to material fact, and whether the mover is entitled to
judgment as a matter of law. Dorsey v. Purvis Contracting Grp., LLC, 17-369 (La.
App. 5 Cir. 12/27/17), 236 So.3d 737, 741, writ denied, 18-0199 (La. 3/23/18), 239
So.3d 296.
Generally, in a motion for summary judgment, the movant retains the burden
of proof. La. C.C.P. art. 966(C)(2). KMJ Services, Inc. v. Hood, 12-757 (La. App. 5
Cir. 4/10/13), 115 So.3d 34; Robinson v. Jefferson Parish Sch. Bd., 08-1224 (La.
App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043; Champagne v. Ward, 03-3211 (La.
1/19/05), 893 So.2d 773, 776-77. However, if the movant sustains this initial
burden by showing an absence of factual support for at least one essential element
of the adverse party's claim, action, or defense, then the burden shifts to the
adverse party to present factual support adequate to establish that he will be able to
satisfy the evidentiary burden at trial. Id. Thereafter, if the adverse party fails to
produce factual support to show that he will be able to meet his evidentiary burden
of proof at trial, there is no genuine issue of material fact, and the movant is
entitled to summary judgment as a matter of law. Id.Executive Officer Liability
As acknowledged by this Court in Abadie v. Metro. Life Ins. Co., 00-344
(La. App. 5 Cir. 3/28/01), 784 So.2d 46, 81, writ denied, 01-1533 (La. 12/14/01),
22-CA-417 2
804 So.2d 642,3 the Louisiana Supreme Court set forth the factors used to
determine executive officer liability in asbestos actions in the case of Canter v.
Koehring Co., 283 So.2d 716 (La. 1973). These elements are:
1. The principal or employer owes a duty of care to the third
person (which in this sense includes a co-employee), breach of which
has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the
defendant.
3. The defendant officer, agent, or employee has breached this
duty through personal (as contrasted with technical or vicarious) fault.
The breach occurs when the defendant has failed to discharge the
obligation with the degree of care required by ordinary prudence
under the same or similar circumstances—whether such failure be due
to malfeasance, misfeasance, or nonfeasance, including when the
failure results from not acting upon actual knowledge of the risk to
others as well as from a lack of ordinary care in discovering and
avoiding such risk of harm which has resulted from the breach of the
duty.
4. With regard to the personal (as contrasted with technical or
vicarious) fault, personal liability cannot be imposed upon the officer,
agent, or employee simply because of his general administrative
responsibility for performance of some function of the employment.
He must have a personal duty towards the injured plaintiff, breach of
which specifically has caused the plaintiff's damages. If the
defendant's general responsibility has been delegated with due care to
some responsible subordinate or subordinates, he is not himself
personally at fault and liable for the negligent performance of this
responsibility unless he personally knows or personally should know
of its non-performance or mal-performance and has nevertheless
failed to cure the risk of harm.
Id., at 721.
Personal duty of care
In Griffin v. Littlefield, 416 So.2d 198, 200 (La. App. 1 Cir. 5/25/82), writ
denied, 421 So.2d 250 (La. 1982), the court held that as a prerequisite to recovery
in an executive officer suit, the plaintiff must establish by a preponderance of the
evidence that the employer delegated to one of the defendant executives the
fulfilling of a personal duty owed to the plaintiff and that the breach of this duty
3
The full citation for this appeal is as follows: Abadie v. Metro. Life Ins. Co., 00-344 (La. App. 5 Cir.
3/28/01), 784 So.2d 46, 81, writ denied, 01-1533 (La. 12/14/01), 804 So.2d 642, and writ denied, 01-1534 (La.
12/14/01), 804 So.2d 642, and writ denied, 01-1543 (La. 12/14/01), 804 So.2d 643, and writ denied, 01-1544 (La.
12/14/01), 804 So.2d 643, and writ denied, 01-1629 (La. 12/14/01), 804 So.2d 643, and writ denied, 01-1853 (La.
12/14/01), 804 So.2d 644, and writ denied, 01-1931 (La. 12/14/01), 804 So.2d 644.
22-CA-417 3
caused damage to the plaintiff. Further, general administrative responsibility of an
executive officer does not fall within the category of a personal duty. Chrisham v.
Blum, 383 So.2d 458, 459 (La. App. 4 Cir. 4/15/80), writ refused, 389 So.2d 1128(La. 1980).
In Hoerner v. ANCO Insulations, Inc.,4 a former asbestos worker brought a
products liability action against his former employers, asbestos contractors, and
asbestos distributors following his contraction of asbestosis. A jury in the trial that
followed found liability as to four of the executive officers in the company where
the plaintiff was employed. In reviewing the verdict against the executives, the
Fourth Circuit opined that the correct test to determine liability was whether the
officer in question had “some direct duty to provide [the plaintiff] a safe place to
work, including some control over purchase and availability of equipment and
supplies.” Id. at 63-64. In applying this test on appeal, the court reviewed the
jury’s determination and found that liability was only proven for two of the
executives in the action. In one of those instances, there was a direct admission by
the executive that “he had responsibility for providing his employees a safe place
to work, including control of purchasing and availability of equipment and
supplies.” Liability for the second executive was affirmed on the basis that he had
agreed to provide respirators to union employees “when required,” meaning
whenever dusty conditions existed. Id., at 65.5
Liability of the B & B executives
The plaintiffs in the instant case acknowledge a lack of direct evidence that
shows any of the four B & B executives at issue were delegated the responsibility
for Mr. Barker’s personal safety while he worked for that company. Thus, the
4
Hoerner v. ANCO Insulations, Inc., 00-2333 (La. App. 4 Cir. 1/23/02), 812 So.2d 45, writ denied, 02-
0935 (La. 6/21/02), 819 So.2d 1023, and writ denied, 02-0965 (La. 6/21/02), 819 So.2d 1023, and writ denied, 02-
0967 (La. 6/21/02), 819 So.2d 1023, and writ denied, 02-0972 (La. 6/21/02), 819 So.2d 1024.
5
See also, Abram v. EPEC Oil Co., 05-0626 (La. App. 4 Cir. 6/28/06), 936 So.2d 209, 214, writ denied,
06-2147 (La. 11/17/06), 942 So.2d 537, where executives found liable for the plaintiff’s asbestos injuries were
positively identified as persons in charge of the plaintiff’s safety.
22-CA-417 4
requirement of delegation under Canter, supra, was not met. Also, there are no
respective admissions in the record by any of the B & B executives that they
assumed responsibility for Mr. Barker’s safety or to prevent his exposure to
asbestos, which was a key element of liability found by the court in Hoerner,
supra.
The plaintiffs argue that A.H. Hullinghorst and William Devillier knew, or
should have known, of the non-performance and/or mal-performance of the safety
duties of the foremen at the Borden plant to protect Mr. Barker from asbestos
exposure. In other cases of executive liability on similar issues, our courts have
held, citing Canter, supra, that “general administrative responsibility” does not
replace the “duty of care” standard in the determination of executive liability. Egan
v. Kaiser Aluminum & Chem. Corp., 94-1939 (La. App. 4 Cir. 5/22/96), 677 So.2d
1027, 1036, writ denied, 96-2401 (La. 12/6/96), 684 So.2d 930. In the instant case,
the plaintiffs have not proven that the work of Hullinghorst and Devillier rose
above a general administrative responsibility.
Similarly, the plaintiffs argue that foremen Herman Warthen and Ben Kelly
were “directly in charge of safety” at the Borden facility where Mr. Barker worked
for B & B. Unlike the executives found to have incurred liability in Hoerner based
upon their own admission, the record before us does not contain any evidence by
way of testimony or affidavit, through which either Warthen or Kelly admit a
personal duty to provide Mr. Barker with a safe place to work at the Borden
facility. Mr. Barker recalled in his deposition that, generally, safety rules are
implemented by “the job site,” which has its own set of rules and regulations as to
how the job should be performed. While Mr. Barker identified Kelly and Warthen
as foremen on the Borden worksite, he did not know if either was responsible for
safety there. A co-worker of Mr. Barker at the Borden facility, Charles Harris,
22-CA-417 5
testified in his deposition that safety meetings at Borden were conducted by the
Supervisor for the General Contractor and not a B & B foreman.
Conclusion
After our de novo review of the record in this matter, we find the appellees
have met their burden of proof under applicable summary judgment standard as set
forth through the pleadings, affidavits, and memorandum submitted. We further
find no error in the trial court’s ruling that Mr. Barker has not provided evidence
that any of the four B & B executive officers named in this matter had a delegated
duty of care toward Mr. Barker to ensure his safety against asbestos exposure at the
Borden worksite. Based on the foregoing, and for the reasons assigned, we find
that there are no genuine issues as to material fact and the appellees are entitled to
judgment as a matter of law, and accordingly, summary judgment was properly
granted in this matter.
Accordingly, the judgment of the trial court is affirmed.
AFFIRMED
22-CA-417 6
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 29, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-417
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HONORABLE CODY M. MARTIN (DISTRICT JUDGE)
CHRISTOPHER C. COLLEY (APPELLANT) DAWN D. MARULLO (APPELLEE) TROY N. BELL (APPELLEE)
MAILED
JEFFREY M. BURG (APPELLEE) DAVID R. CANNELLA (APPELLANT)
KAYE N. COURINGTON (APPELLEE) KRISTOPHER L. THOMPSON (APPELLANT)
LOUIS O. OUBRE (APPELLEE) ATTORNEYS AT LAW
ATTORNEYS AT LAW 909 POYDRAS STREET
616 GIROD STREET SUITE 2100
NEW ORLEANS, LA 70130 NEW ORLEANS, LA 70112